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Monday, April 21, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 4/21/14):
Thursday, April 24
- 9:00 AM - Curtis Sample v. State of Indiana (45S03-1401-CR-11) Sample was convicted of murder, see Sample v. State, 932 N.E.2d 1230 (Ind. 2010), and on remand, was found to be an habitual offender. During the habitual offender phase, the State called witnesses who testified that the victim in the predicate offenses had mental health issues. Citing Hollowell v. State, 753 N.E.2d 612 (Ind. 2001), the Court of Appeals affirmed in Sample v. State, No. 45A03-1302-CR-52 (Ind. Ct. App. Sept. 19, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 9/19/13 NFP COA opinion where the issue was "Did the trial court commit reversible error in permitting prosecution witnesses to testify that the victim of two predicate offenses was mentally infirm?" The opinion ends with this interesting statement:
Sample urges us to adopt the contrary view expressed by Justice (now Chief Justice) Dickson and Justice Rucker in Hollowell (2001). It is not within our prerogative to do so, as that view was expressed in a dissenting opinion, and did not carry the day. Pursuant to Hollowell, the trial court did not err in permitting Ryan and Papadakis to testify about the memorable aspect of the case in which each was, respectively, involved.
- 9:45 AM - Robert Corbin v. State of Indiana (75S03-1401-CR-13) Corbin, a teacher, sent messages to a student asking her to take care of his sexual arousal, to sneak out of the house so he could pick her up, etc. Corbin was charged with attempted child seduction, IC 35-42-4-7. The Starke Circuit Court denied Corbin’s motion to dismiss. In this interlocutory appeal, the Court of Appeals reversed, deciding that Corbin’s internet-based solicitations did not constitute a substantial step toward the crime of child seduction. Corbin v. State, 999 N.E.2d 70 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an 10/11/13 opinion, in a case involving Facebook solicitations, where the COA concluded: "Corbin did not take the substantial step required to amount to attempted child seduction."
- 10:30 AM - Seth A. Miller v. State of Indiana (63A01-1210-CR-475) Following a jury trial in Pike Circuit Court, Miller was convicted of Corrupt Business Influence, IC 35-45-6-2, and other offenses. The Court of Appeals reversed this conviction on grounds there was insufficient evidence to establish the element of an “enterprise” within the meaning of the statute. Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a July 31, 2013 COA opinion in a case including a conviction for Corrupt Business Influence:
The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity. The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated. In all other respects the judgment is affirmed.
Thursday, May 1
- 9:00 AM - First Am. Title Ins. Co. v. Robertson (49S04-1311-PL-732) First American Title Insurance Company petitioned the court for a judgment declaring void the Commissioner of Insurance's decision calling for an investigatory hearing. The Commissioner moved to dismiss the petition. The Marion Superior Court denied both the petition and the motion. The Court of Appeals affirmed in part and reversed in part, concluding the allegation that First American failed to exhaust its administrative remedies raised a procedural rather than a jurisdictional issue; the documents filed by First American, although not the complete agency record, were sufficient to permit judicial review; and the Commissioner's decision was untimely and void. First Am. Title Ins. Co. v.Robertson, 990 N.E.2d 9 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a May 13th COA opinion. From footnote 8:
We note that in many instances, when a court sets aside an agency action, it remands the case to the agency for further proceedings. See Ind. Code § 4-21.5-5-15. Considering our holding that the Commissioner’s failure to comply with the statutory deadline rendered his order void and he can no longer take action on the report that was the subject of the order, remand to the agency would serve no purpose and is, therefore, unnecessary. * * * On remand, the trial court must simply issue an order granting First American’s petition and declaring the Commissioner’s order void.
- 9:45 AM - Natural Resources Defense Council v. Poet Biorefining (49A02-1205-MI-423) The Office of Environmental Adjudication determined the State Implementation Plan ("SIP") required the Indiana Department of Environmental Management to categorize the fuel ethanol facilities as "chemical process plants" for the purpose of regulated air emissions. The Marion Superior Court reversed. The Court of Appeals reversed the trial court, concluding the SIP categorized ethanol fuel facilities as chemical process plants and IDEM could not change its treatment of the facilities without obtaining approval of an amended SIP from the Environmental Protection Agency. Nat'l Res. Def. Council v. Poet Biorefining-North Manchester, 987 N.E.2d 531 (Ind. Ct. App. 2013), reh'g denied, trans. pending. IDEM and Central Indiana Ethanol, LLC have petitioned the Court to accept jurisdiction over the appeal.
ILB: This was an April 30, 2013 COA opinion (7th case) concluding: "The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court."
- 10:30 AM - Jerry A. Smith v. State of Indiana (15A05-1208-CR-411 & 24A01-1210-CR-469) After Smith pleaded guilty to federal charges relating to an investment scheme, he moved to dismiss charges pending against him in the Franklin Circuit Court and in the Dearborn Superior Court on grounds IC 35-41-4-5 bars the subsequent state-court prosecutions. The trial courts denied his motions to dismiss in part. In the separate appeals that followed, the Court of Appeals affirmed the trial courts’ rulings in part and reversed in part in separate opinions. Smith v. State, 993 N.E.2d 1182 (Ind. Ct. App. 2013), trans. pending, and Smith v. State, 993 N.E.2d 1185 (Ind. Ct. App. 2013), trans. pending. Smith has petitioned the Supreme Court to accept jurisdiction over both of the appeals. The Court will hear a forty-minute combined oral argument, but otherwise has not consolidated the appeals.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 4/21/14):
Thursday, April 24
- 10:30 AM - Betina Pierson v. Service America Corp., et al (49A02-1307-CT-561) Trenton Gaff was intoxicated when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. Separate lawsuits were filed on behalf of Pierson's estate and Canada, alleging that Centerplate, the vendor of alcoholic beverages at Lucas Oil Stadium, had violated Indiana's Dram Shop Act by providing alcoholic beverages to a visibly intoxicated person and had committed common law negligence by failure to adequately train servers. The trial court granted summary judgment to Centerplate, concluding that there was no evidence that a Centerplate designee served alcohol to Graff while he was visibly intoxicated. Pierson claims that genuine issues of material fact preclude summary judgment and that the trial court did not view the evidence in the light most favorable to the non-movant, as required by the Indiana summary judgment standard. The Scheduled Panel Members are: Judges Najam, Bailey and May. [Where: New Castle High School, 801 Parkview Drive, New Castle, IN]
Next week's oral arguments before the Court of Appeals (week of 4/28/14):
Wednesday, April 30
- 11:30 AM - Rashawn Speed v. State (35A02-1308-CR-696) A jury found Speed guilty of Class A felony child molesting, Class C felony child molesting, and Class B felony sexual misconduct with a minor. Speed was acquitted of the Class D felony sexual misconduct with a minor charge.
On appeal, Speed argues that the trial court improperly allowed J.A.T.’s counselor to vouch for her credibility. He also claims that the trial court erroneously allowed the prosecutor to ask leading questions of J.A.T., who was 20 at the time of the trial, and allowed a line of questioning that implied that other acts occurred outside of Huntington County. Speed also asserts that there is insufficient evidence to support his convictions because there is no evidence to corroborate J.A.T.’s testimony and her testimony is not credible. Finally, Speed claims his attorneys’ failure to object to certain evidence and to rebut other evidence resulted in ineffective assistance of counsel.
The Scheduled Panel Members are: Judges May, Mathias and Barnes.
[Where: Saint Joseph High School, 453 N. Notre Dame Ave., South Bend, IN ]
- 1:00 PM - Maddox Macy v. State (52A02-1309-CR-808) On August 25, 2012, animal control officers in Miami County received a report that two dogs owned by Maddox Macy bit one of Macy’s neighbors. The next morning, Officer Roger Bowland accompanied two animal control officers to Macy’s residence. Macy was uncooperative. Despite being asked to calm down, Macy was loud and demanded answers from the officers. Officer Bowland threatened to arrest Macy if she did not calm down. Officer Bowland then walked across the street to the bite victim’s house. Macy followed down the sidewalk and began “making a scene.” Officer Bowland arrested Macy and placed her in the front seat of his police car. Macy opened the door of the car and continued to yell. Officer Bowland forced Macy back into the car, but Macy refused to put her feet inside the door. Officer Bowland had to pick up Macy’s feet and place them inside the car. Macy was convicted of disorderly conduct and resisting law enforcement. Macy appeals her conviction for resisting law enforcement, arguing she did not forcibly resist. The Scheduled Panel Members are: Judges Baker, Kirsch and Robb. [Where: Lake County Government Complex Auditorium, 2293 N. Main St., Crown Point, IN ]
Thursday, May 1
- 1:30 PM - Tallman v. State (51A01-1305-PL-241) Richard M. Tallman appeals the trial court’s entry of summary judgment in favor of the State of Indiana, Indiana Department of Natural Resources, and Anthony Mann (collectively “DNR”) on Tallman’s complaint alleging DNR’s negligence. In December 2004, Jerry Tredway hired Tallman to harvest timber on his property for sale. After Tallman harvested more trees than the contract had authorized, Tredway’s daughter contacted DNR. After an investigation, DNR arrested Tallman and transported him to the Martin County Jail. Tallman claims that he sustained injuries as a result of the DNR’s placement of handcuffs around his wrists. Tallman sued DNR for damages, and DNR moved for summary judgment, which the trial court granted. On appeal, Tallman presents a single issue for our review, namely, whether the trial court erred when it concluded that DNR is immune from liability for Tallman’s alleged injuries as a matter of law. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Najam and May. [Where: Salem High School, 700 N. Harrison St., Salem, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on April 21, 2014 08:40 AM
Posted to Upcoming Oral Arguments